Sunday, May 20, 2007

New developments in applying data protection law to the media

One aspect of the Data Protection Commissioner's 2006 Annual Report that will be of acute interest to media lawyers is its application of data protection principles to media coverage of the glitterati and in particular the children of celebrities.

There is an inevitable tension between privacy rights in general (including data protection law) and the interests of the media - particularly when it comes to the insatiable public desire for information about celebrities. Section 22A(1) of the Data Protection Act attempts to resolve this tension by providing a limited exemption from the Act for certain media activities:

Personal data that are processed only for journalistic, artistic or literary purposes shall be exempt from compliance with any provision of this Act specified in subsection (2) of this section if—

(a) the processing is undertaken solely with a view to the publication of any journalistic, literary or artistic material,

(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, such publication would be in the public interest, and

(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision would be incompatible with journalistic, artistic or literary purposes.

This exemption incorporates a balancing test - the person publishing the information must reasonably believe that publication is "in the public interest" and that complying with the data protection principle at stake would not be compatible with their "journalistic, artistic or literary purposes".

The 2005 Annual Report indicated that the Data Protection Commissioner would not simply defer to an editor's decision that something was in the public interest:

While this section refers to the reasonable belief’ of the data controller, it does not, in my opinion, give a newspaper editor the sole discretion to judge if something is in the public interest. This point is perhaps more clearly expressed in Article 9 of the Data Protection Directive (95/46/EC) on which section 22A is based. This states that “Member States shall provide for exemptions or derogations from the provisions of (the Directive) for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.”[emphasis added]

In the case of a complaint received by me, I must therefore judge if the data controller properly balanced the right to privacy with the public interest in disclosure. I must have regard to the nature of the facts, including whether the data relates to a public figure or a relative of a public figure, the age of the data subject and whether sensitive data within the meaning of the Acts is involved.

The 2005 Annual Report went on to say that this balancing exercise would be carried out in light of the European Court of Human Rights decision in Von Hannover and the relevant media codes of conduct, and that particular scrutiny would be applied in matters involving children under 16 where editors "should demonstrate the existence of an exceptional public interest in order to over-ride the normally paramount interest of the child."

These principles were applied in the 2006 Report to make two separate findings of a breach of the Data Protection Acts against the News of the World and the Sunday World. The facts of the News of the World case are typical:

I received a complaint on behalf of a data subject, a well-known individual, arising from material published in the News of the World (Irish edition) in 2005. The complaint related to the subject matter of the material published and the manner in which it was obtained. The material published consisted of a photograph of the data subject and child while shopping, together with related text expressly identifying the data subject's child by name and age, and referring to a third party's perception as to how parent and child were getting along. The complainant alleged that consent was neither sought nor obtained prior to the taking of the photograph. The complainant further alleged that consent was not sought nor obtained prior to the publication of the material subsequently in the News of the World newspaper. In particular, the complainant alleged that the publication contravened Sections 2(1), 2A (1) and 22 of the Data Protection Acts. The complainant considered that their right to privacy outweighed any purported journalistic purpose or public interest in the publication of their photograph and accompanying text which was the subject of the complaint.

The News of the World argued that the parent had, in the past, invited this attention and therefore there was a public interest in publishing. This was rejected, however, with the Data Protection Commissioner applying Von Hannover to find that there was no public interest in this case:

I am obliged by Section 3 of the European Convention on Human Rights Act, 2003, to perform my functions in a manner compatible with the State's obligations under the Convention's provisions. Accordingly, in arriving at my conclusion on the applicability of the Section 22A exemption to the facts of the case, I had regard to the provisions of Articles 8 and 10 of the European Convention on Human Rights and any guidance that the European Court of Human Rights (ECtHR) had provided on how the rights to privacy and freedom of expression should be balanced - the same balance that was at issue in relation to the applicability of Section 22A of the Acts.

In this regard, I noted the Decision of the ECtHR in the case of Von Hannover v. Germany (Application No. 59320/00) - the Princess Caroline case. The Court held that the German courts, in refusing to grant Princess Caroline of Monaco injunctions against newspapers taking and publishing photographs of her, had infringed her rights under Article 8 of the Convention. The photographs in question had shown Princess Caroline engaged in various activities such as shopping, playing sport and at the beach. The Court, noting that the material related exclusively to details of the applicant's private life, considered that "the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant's private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public." In that case, the Court considered that “anyone, even if they are known to the general public, must be able to enjoy a "legitimate expectation" of protection and of respect for their private life."

While data protection law is not specifically dealt with in the Von Hannover Decision, this case was of assistance in helping me to come to a decision as to the appropriate balance between the public interest in freedom of expression and the individual's right to protection of their personal data, as required by Section 22A of the Acts.

Section 22A(3) of the Acts provides that, in evaluating whether a publication would be in the public interest, regard may be had to codes of practice approved by the Data Protection Commissioner pursuant to the Acts. While no such code has been approved, it seemed appropriate, in reaching a determination, to take note of the newspapers' own codes of practice. In making my assessment, I therefore took account of the National Newspapers of Ireland Code of Practice. In relation to children, the Code provides that they should not be identified unless there is a clear public interest in doing so. Relevant factors are identified as the age of the child, whether there is parental permission, and whether there are circumstances that make the story one of public interest, "or, if the person is a public figure or child of a public figure, whether or how the matter relates to his/her public person or office." I also noted that the UK Press Complaints Commission Code of Practice provides that editors must not use the fame of a parent as sole justification for publishing details of a child's private life and that "in cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child”. I was of the view that these provisions represent a fair expression of how the principles of data protection legislation ought to be applied in relation to children and minors.

In coming to my decision, I also noted the allegation, which was not refuted by the data controller, that the photograph was taken without the consent of the data subject. I issued a Decision on this case under Section 10(1) (b) (ii) of the Acts. Among other things, I found that it did not appear to me that the public interest claimed by the data controller in publication of the material in question could be such as to justify setting aside the right to respect for a person's private and family life.

This decision is significant in a number of regards. From a practical point of view it creates a low cost and effective route for a complainant to allege an invasion of their privacy. It makes life significantly more difficult for the media - notably it goes much further than the UK Press Complaints Commission Elle McPherson decision. But it also changes the privacy landscape more generally. Until recently it seemed that privacy issues in the media would primarily be governed by the regulatory package to be implemented by the Privacy Bill 2006 and the new Press Council of Ireland. With the lapse of that Bill (and its uncertain prospects in the new Oireachtas) the Data Protection Commissioner may end up assuming, by default, a role which that Bill had envisaged for the courts. A great deal will depend on whether the Commissioner is willing to leave these complaints to be dealt with by the Press Council - and that in turn will probably depend on how effective the Press Council proves itself to be.